MCCLARY v. COUGHLIN

The opinion of the court was delivered by: Feldman, United States Magistrate Judge.

DECISION AND ORDER

Introduction

On February 23, 1999, after a two week trial, the jury returned
a verdict finding liability and awarding damages against four of
the defendants in the above captioned case. Specifically,
defendant Hall was found liable in the amount of $10,000 to
plaintiff and defendants Irvin, Branning and Coughlin were found
liable in the amount of $650,000 to plaintiff. Presently before
the Court are motions filed by the liable defendants seeking
judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) or, in
the alternative, a new trial pursuant to Fed.R.Civ.P. 59. (Docket
112, 113).*fn1 For the reasons that follow, defendants' motion
for judgment as a matter of law is denied. Defendants' motion for
a new trial is granted in part.

Standard of Review and Relevant Factual Background

In ruling on defendants' Rule 50(b) motion for judgment as a
matter of law (JMOL), this Court "is required to deny the motion
unless, viewed in the light most favorable to the nonmoving
party, the evidence is such that, without weighing the
credibility of the witnesses or otherwise considering the weight
of the evidence, there can be but one conclusion as to the
verdict that reasonable men could have reached." Sir Speedy,
Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038-39 (2d Cir.
1992) (internal citations and quotations omitted). See Weldy v.
Piedmont Airlines, Inc., 985 F.2d 57, 60 (2d Cir. 1993) (because
the trial judge cannot assess the weight of conflicting evidence,
pass on the credibility of the witnesses or substitute its
judgment for that of the jury, nonmoving party must be given the
benefit of all reasonable inferences in Rule 50(b) motion
determinations). With this legal standard firmly in mind, for
purposes of defendants' motion for judgment as a matter of law,
the facts viewed in the light most favorable to the plaintiff can
be briefly summarized as follows.

After sentencing, McClary was initially assigned to the
Downstate Correctional Facility, but was soon transferred to
Attica Correctional Facility ("Attica"). McClary arrived at
Attica on July 11, 1989, and after administrative processing, was
placed in the prison's general population. McClary was assigned
the job of porter and was responsible for assisting in the
maintenance of the building which housed the prison's school.

Although Attica is a maximum security facility, the disparities
between a general population inmate and an inmate housed in the
Special Housing Unit ("SHU"), the most restrictive and punitive
prison housing classification used within DOCS, were described at
length during the trial. While those differences will not be
repeated in detail herein,*fn2 it is important to note that
inmates assigned to a prison's general population openly interact
with other general population inmates for a substantial portion
of each day, including not only meals but also a variety of
recreational, educational, vocational and religious activities.
During the period of time McClary was at Attica, the prison
housed over 2000 inmates, the vast majority of whom were in the
prison's general population. It was undisputed at trial that
during the time when McClary was part of Attica's general
population, he never presented any disciplinary or security
problems to prison officials.

On September 29, 1989, McClary was removed from Attica and
transported to the Metropolitan Correctional Center ("MCC"), a
federal detention center in New York City. According to McClary,
he had no advance notice of the move or the reasons he was being
placed into federal custody. On September 30, 1989, the day after
McClary was removed from Attica, defendant Albert Hall, then the
Deputy Superintendent of Security at Attica, received a written
memorandum from a Lieutenant Malenski. (Trial Exhibit 1A). The
Malenski memorandum informed Hall that Glenn Goord, the Deputy
Commissioner of DOCS, had ordered that McClary be placed into
administrative segregation when he returned to Attica from
"court." The memorandum described McClary as the "triggerman" who
"assassinated a New York City Police Officer" and was "tied in
with the New York City drug trade." The memorandum referred to a
"major arrest involving some family members that has resulted in
inmate McClary and some other inmates volunteering to testify in
court against other drug dealers."

On November 29, 1989, McClary was finally returned to Attica.
He was not, however, returned to the prison's general population.
Instead, McClary was immediately placed in administrative
segregation in Attica's SHU, where he was confined to his cell
alone for twenty-three hours per day, the only exception being a
single hour when McClary was permitted outside to engage in
solitary exercise in an SHU cage, or pen. For the next four
years, three months and 19 days, and while confined in three
different prisons, McClary remained in solitary confinement. In
March 1994, almost four years after he commenced the present
lawsuit, McClary was released from the SHU.

Much of the trial focused on the reasons for McClary's
long-term assignment to SHU. Unlike most inmates confined in SHU,
McClary's solitary confinement was not in response to any prison
disciplinary infraction or punishment, but was classified as
"Administrative Segregation." The jury heard testimony regarding
New York State regulations which permitted administrative
segregation only upon "a determination by the facility that the
inmate's presence in general population would pose a threat to
the safety and security of the facility." 7 N.Y.C.R.R. §
301.4(b). The relevant regulations, which were admitted in
evidence, set forth the mandatory due process rights inmates have
with respect to being placed and maintained in administrative
segregation.*fn4

Defendant Hall testified that until the Goord memo arrived in
September 1989, he had never heard of David McClary or the
circumstances of his crime. (Trial Transcript, Volume II, at page
513-514). However, upon his return to Attica, McClary was served
with a DOCS notice officially advising him of the basis for his
recommended placement in administrative segregation. The notice,
dated November 20, 1989, read: "Due to the inmates (sic)
notoriety/crime his presence in general population would pose a
threat to the safety/security of the facility at this time."
(Trial Exhibit 3). At the conclusion of McClary's initial hearing
at Attica, the hearing officer confirmed the administrative
segregation recommendation and informed McClary that he would
"pose a danger to the facility and your presence in general
population would adversely effect the facility by your influence
on other inmates in general population." (Trial Exhibit 2).

On July 31, 1990, McClary was transferred to the Southport
Correctional Facility ("Southport"). Again, he was immediately
placed in administrative segregation and afforded an initial due
process hearing. At the conclusion of the hearing, the hearing
officer informed McClary that "due to the notoriety of your crime
that your presence in population would create a threat to the
safety and security of this facility." (Trial Exhibit 5). McClary
remained at Southport until March 19, 1991. During that time and
pursuant to DOCS regulations, the Southport ASRC met sixteen
times. After each meeting, the committee issued the following
recommendation to Southport's Superintendent: "Continue
Administrative Segregation. Recommend Transfer." (Trial Exhibit
7). A member of the ASRC during the time McClary was confined at
Southport testified that the committee recommended transfer so
that McClary could be placed in general population.*fn5 (Trial
Transcript Vol. III at page 1323). McClary remained in
administrative segregation at Southport until he was transferred
to the Wende Correctional Facility ("Wende").

McClary arrived at Wende on March 19, 1991, and again was
immediately placed in administrative segregation. At the
conclusion of his initial due process hearing, the Hearing
Officer ruled: "It is felt that this inmate's presence in general
population poses a threat to the safety and security of this
facility due to the notoriety of the crime for which inmate was
convicted." (Trial Exhibit 8).

McClary remained at Wende for almost three years. He spent the
entire time in solitary confinement in Wende's administrative
segregation unit. Paul Mecca, McClary's correction counselor
during the time McClary was at Wende, testified that on three
separate occasions during McClary's first eight months at Wende,
he recommended that McClary be transferred to a facility where he
could be placed in general population and be able to participate
in prison programming. (Trial Transcript, Volume III at pages
1396-1400). Each request was denied. Mecca testified that he
could recall no other inmate who spent four years in
administrative segregation. (Trial Transcript, Volume III at page
1416).

Trial testimony also focused on the effect that administrative
segregation had on McClary. For the entire period McClary was
designated for administrative segregation, he was housed in SHU.
Trial testimony confirmed that SHU is the most restrictive and
punitive form of housing used by DOCS and that the SHU
environment varies little from prison to prison. The vast
majority of inmates who are in SHU are placed there for defined
time periods as part of prison punishment. However, testimony
also indicated that SHU houses a high percentage of actively
mentally-ill inmates. (Trial Transcript, Volume II at page 692).

Because it is primarily a punitive housing environment, inmates
residing in SHU are by regulation and practice given few options
in their daily lives. Twenty-three hours a day are spent in their
cells. All meals are eaten alone in their cells. SHU inmates are
permitted one hour outside to exercise alone in a fenced cage or
pen. SHU inmates are not allowed to use a telephone unless it is
an emergency. Visitation, mail, personal property, clothing,
educational, religious and recreational programming are all
severely restricted for SHU inmates. The differences between SHU
housing and general population housing in a maximum security
prison were extensively discussed in this Court's prior Sandin
decision, McClary v. Kelly, 4 F. Supp.2d 195, 203-06 (W.D.N Y
1998), and the trial testimony was fully consistent with those
factual findings. Despite the fact that McClary was not assigned
to SHU for disciplinary reasons, the conditions of his SHU
confinement were identical to inmates housed in SHU as part of a
prison disciplinary sentence meted out for punitive purposes.

The effects of prolonged isolation in SHU were described at
length during the trial testimony of Dr. Stuart Grassian. (Trial
Transcript, Volume II at pages 675-774). Grassian, a board
certified psychiatrist and faculty member at the Harvard Medical
School, had conducted research and published articles on the
topic of "psychiatric effects of solitary confinement" and was
familiar with SHU housing in New York State prisons. Grassian,
who also testified at the Sandin hearing, believed that the
toxic effects normally associated with prolonged solitary
confinement in SHU were enhanced in McClary's situation because,
unlike inmates sent to SHU for punitive purposes, McClary's
confinement was unrelated to any affirmative prison misbehavior
and was potentially limitless in duration. Id. at 701-02,
756-57. The details of Grassian's trial testimony regarding the
psychological and physiological effects of spending over four
years in solitary confinement need not be repeated in detail
here, but his trial testimony was consistent with the testimony
he gave in the earlier Sandin hearing. McClary v. Kelly, 4
F. Supp.2d at 205-07.

After two weeks of trial, the case was submitted to the jury on
the morning of February 22, 1999. The jury deliberated until 8:30
p.m. The following day, the jury returned a verdict finding
defendants Hall, Branning, Irvin and Coughlin liable for their
personal involvement in the continued administrative segregation
of McClary at Attica and Wende. After making a determination as
to liability, the jury heard summations of counsel and
instructions from the Court on the issue of damages. That
evening, the jury returned its verdict as to damages, finding
defendant Hall liable in the amount of $10,000 for his role in
denying McClary procedural due process at Attica and finding
defendants Branning, Irvin and Coughlin ...

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